IQBAL QAMAR BILAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 3792/2019

[2023] HKCFI 2219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3792 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Pakistan who entered Hong Kong illegally was arrested by police on 7 December 2011. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by the family of his brother’s girlfriend over their long standing bitter feud with the Applicant’s family, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Arfat Colony, Gujranwala, Pakistan where he lived with his father who was a retired police officer and his mother and 5 brothers.

3.  One of his elder brothers Javed was dating his girlfriend from an influential family in the home district where her father Rana was a member of the Provincial Assembly of the Gujranwala District but who objected to their relationship which had led to some serious disputes with the Applicant’s family.

4.  One day in 2004 while the Applicant was at school, he was informed that his father and grandfather were killed by some gunmen suspected of being hired by Rana due to their family feud, but which the local police failed to carry out any prosecution against Rana due to lack of evidence.

5.  Several days later the Applicant’s brother Javed took revenge against Rana by killing 2 of his sons and then surrendered to the police, and for which he was subsequently charged for murder and was detained in police custody while awaiting trial.

6.  Thereafter Rana swore to take revenge against the Applicant’s family by sending gunmen to fire shots at the Applicant’s home, but the Applicant and other members of the family all managed to avoid being injured, and for which the Applicant subsequently went to the local police to demand actions against Rana, but instead he was detained by the police who beat him and warned him to back off from Rana and his family.

7.  As the death threats from Rana and his men had continued but the police failed to provide any protection, and while his mother and brothers chose to move to Sialkot to avoid the threats, the Applicant felt it was not safe to remain in Pakistan and on 18 November 2011 departed Pakistan for China, and from there he later sneaked into Hong Kong and raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 22 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  While being released on recognizance pending the determination of his claim, the Applicant was again arrested by police on several occasions in 2018 for possessions and/or trafficking of dangerous drugs for which he had been convicted and sentenced to prisons for various terms between 2 months and 23 months.

9.  By a Notice of Decision dated 10 October 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

10.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Rana and his men upon his return to Pakistan as low due to the absence of any past ill-treatment from them against the Applicant, that there is no evidence that Rana had specifically targeted the Applicant for harm or revenge and that his mother and other siblings have all remained unharmed after moving away to Sialkot, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 205 million people spread across a vast territory of more than 796,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Sialkot where the rest of his family including his mother and siblings had moved to live there without further incidents and where it would be difficult if not impossible for Rana to locate him.

11.  On 30 August 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as it was filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, Cap 115, the Board in pursuance of Section 37ZT (2) of the Ordinance proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s Notice of Appeal.

12.  By a Decision dated 4 December 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that the Director’s decision was sent on the same day of 10 October 2018 to the Applicant’s lawyer from DLS who then served it on the Applicant on 15 October 2018 at Lai Chi Kok Reception Centre where he was then being detained for one of his drugs charges, that the deadline for him to file his Notice of Appeal was 26 October 2018, that his Notice of Appeal then filed was late by almost 10 months, that such delay was serious and significant, that there was no good or valid reason for such serious delay even though he might have been in detention or imprisonment during the relevant period and with access to legal advice and assistances within detention centers and correctional institutions, that there was no merits in his intended appeal given the correct findings and conclusion reached by the Director in the decision in rejecting his claim, and that there were no other matters of fact within the knowledge of the Board which it was required to take into account as the law then was under Section 37ZT (2) of the Ordinance or any special circumstances that would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal.

13.  On 19 December 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just asserted that the decision is unfair and unreasonable but without stating how it is so, nor was he able to do so or put forward any proper ground for his intended challenge at the hearing of his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In the Applicant’s case, the Board refused to allow the late filing of his Notice of Appeal for the thorough and detailed analysis and reasoning set out in its decision including details of his detentions and/or imprisonments during the relevant or material periods of the service of the Director’s decision on him and thereafter of his access to legal assistance for his intended appeal, and in adopting the proper approach set out in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 as well as taking into account of the merits of the Applicant’s appeal by undertaking a careful consideration of the factual basis of his non-refoulement claim and the findings and conclusion of the Director in his decision, an approach held to be required by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430, as the law then was under Section 37ZT (2) of the Ordinance. As such, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

16.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision treated as the final determination of the Applicant’s claim upon the refusal of the late filing of his appeal by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their respective consideration and assessment of the Applicant’s non-refoulement claim and the late filing of his Notice of Appeal.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse his leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1